Editorial: The Repressive Logic of Liberal Rights: Religious Freedom, Contraceptives, and the “Phony” Argument of the New York Times

﻿In its February 11 editorial,1 the New York Times refers to “a phony crisis over ‘religious liberty’ engendered by the right,” expressing its disappointment that President Obama was willing to “lend any credence to the misbegotten notion that providing access to contraceptives violated the freedom of any religious institution.” Such a facile dismissal ought to be greeted with concern by reasonable citizens, whether religious believers or not. An adequate response to the views expressed by the Times, however, evokes a number of difficult issues regarding rights in a liberal society, as well as regarding the idea of human dignity that justifies and first defines rights. Indeed, once we understand the (mostly unconscious) premises with respect to these issues that inform the Times’s editorial, we will see that its claim of a “phony crisis over ‘religious liberty’” is consistent with its premises and thus bears an inner coherence.

What I mean to suggest, then, is that Catholics make a grave mistake if they approach the current controversy on the assumption that all sides agree in principle about the nature and universality of rights, and if they thus think that what is at stake is simply a matter of a failure to apply this commonly held principle of universal rights with consistency. On the contrary, the liberal understanding of rights presupposed by the Times stands in deep tension with a Catholic understanding, on grounds of both reason and faith: the two notions of rights rest upon and are informed by significantly different ideas of human nature and dignity. Indeed, the rights assumed by the Times of their inner logic trump the rights claimed by Catholics, whenever, and insofar as, these differently conceived rights come into conflict.

The point, then, is that, if we fail to understand that the present crisis is at root one regarding the nature of the human being, our political strategies, however effective in the short term, will over the long term serve to strengthen the very assumptions that have generated the crisis in the first place. This does not mean that strategies that speak of rights in the liberal idiom cannot be justified for prudential reasons—even for a prudence that is Gospel-inspired. It means simply that even these strategies must be integrated as far as possible, from the beginning, into a more adequate sense of rights based on a fuller vision of the human person, if and insofar as such strategies are not themselves to reinforce the deeper terms of the crisis.

My purpose in what follows is to show the warrant for these judgments.

﻿I begin by citing a striking claim by Pierre Manent, the contemporary French scholar and historian of liberalism, who, after clearly acknowledging the influence of Christianity on the liberal tradition, states the following:

The logic to which liberalism tends is to dismiss [the] moral content [of its Christian roots] and replace [the] “objective” morality, held as valid by the different Christian churches, by a formal morality of “reciprocity” or “respect” by all of the “individuality” of all. To choose a crucial illustration, it is impossible for a society claiming to be in the Christian tradition to admit that the right to abortion be written into law, and it is impossible for a liberal society to refuse members this right.2

Manent does not explain fully why he makes this judgment, but it does not seem to me difficult to show that it is well-founded. My concern here is not directly with the claim to a right to abortion on its own terms, but with the claim to a right to abortifacients, contraceptives, sterilization, and the like, insofar as such claims conflict with the claims to rights, for example, of members of religious faiths involved in the administration of health institutions serving the general public. My question concerns the idea of rights that is affirmed by liberalism, and the anthropological-moral criterion yielded by this idea for adjudicating between exercises of rights (or would-be rights) that come into conflict in such situations. For my discussion, I will focus first on the work of John Locke, whose work provides a “classical” liberal view of rights.

(1) First of all, Locke defines the human person in terms of the property of rationality, ascribing rights in the full and proper sense to those who are capable of rational discourse, thus to adults. Locke includes children insofar as they possess this capacity in a rudimentary way, or are on their way to fully exercising such a capacity, while (apparently) excluding “changelings,” or those children who, due to some grave physical deformity, will never manifest reason.3 The original state of nature for Locke, then, is a state of perfect freedom wherein, by virtue of reason, all can “dispose of their possessions and persons as they think fit, within the bounds of the law of nature without asking leave or depending upon the will of any other man.”4 This state is exemplified above all in Adam, who, on account of his not having a father, “was able, from the first instant of his coming into existence, to provide for his own support and preservation, and to govern his actions.”5 The origin of a man’s rights thus lies here, in the capacity to provide for his own support and preservation, and to govern his actions, within the bounds of nature.

But what is meant by “within the bounds of nature,” and how does this help clarify the criterion in terms of which we can adjudicate in a principled way conflicts that arise between different claims of rights? The heart of Locke’s answer to this question is expressed as follows: “Every one, as he is bound to preserve himself. . . , so by the like reason, when his own preservation comes not into competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”6 Basic to human action is thus the unfettered capacity to choose and to exercise power. Human action in its original state, as witnessed to above all by Adam, is a matter of in-dependence. The individual properly conceived is entirely in control of his actions and able to dispose of his person and his possessions. Freedom is not originally-intrinsically conditioned by anything beyond the self; it consists in an act of choice that is, a priori, unbounded. It follows that all men are in principle equal in their claims of rights, because and insofar as they are subjects of freedom in this (would-be) purely formal sense,7 and hence in principle fully in control of their possessions and their persons. Locke does indeed imply a principled kind of order or limit when he refers to “bounds of nature,” and again when he says that each man should seek to preserve all other human beings who, like him, also seek to preserve themselves. But Locke adds the crucial qualifier: so long as one’s own preservation comes not into competition with others’ self-preservation. The neuralgic question thus concerns what Locke means here by “competition” as a criterion for determining each one’s rights and duties with respect to others, and how he thus conceives the proper nature of those rights and duties.

The crucial elements of his position are four. First, my duty to preserve the rest of mankind springs first from and is defined in terms of my right to my own self-preservation. Second, my duty to preserve others is in the first instance “negative” in nature, a matter of toleration: I must not take away or impair either the life or that which tends to the self-preservation of others. Third, this duty of mine toward the other holds only insofar as the other, in the exercise of his right to self-preservation, does not enter into competition with my right to self-preservation. To summarize these three points in the contemporary parlance: my rightful claim on the other is first one of immunity from coercion by the other; my duty with respect to the other is to refrain from coercion in his regard; and, in the case of competition between my self and others, my right to immunity and the other’s duty to respect my immunity take priority over the other’s right to immunity and my duty to respect his immunity.Fourth, we must keep in mind that, in all of the above, the subject of rights for Locke, properly speaking, is the autonomous adult individual of whom we can say that he is fully able to dispose of his own possessions and person, and who is thus independent.

Given this law of nature—mutual self-preservation coincident with priority to one’s own self-preservation—and the idea of man as formal-independent agent that undergirds it, it follows that competition as a criterion for just and unjust actions between the self and others is inherently open-ended. My right to self-preservation, understood as preservation most basically of my autonomy, sets the primary context and terms for my duty to preserve others in their rights to self-preservation. The competition that would suffice as a moral warrant for not exercising my duty to observe the other’s right to self-preservation and immunity from coercion is thus present as a matter of principle whenever, and insofar as, the other’s action limits my independence, or unfettered freedom of choice. It seems to me not difficult to see the pernicious ambiguity here, for example, with respect to cases like abortion. On what principled grounds, given Locke’s conception of the human being as subject of rights only qua originally independent agent, can we claim unequivocally and as a matter of principle that an embryo has not in a given instance (say, when the embryo has a grave disease likely to demand intensive care after birth) entered into competition with its mother, who may thereby judge that she has the right to abort the embryo and no duty to avoid coercive activity in its regard? On what reasonable-objective grounds could we insist that a mother does not have such a right, that is, without appealing to some criterion other than a formalistically-conceived right to preserve herself qua independent, in the face of the competitive burden placed on that independence by the embryo? What is it in such a case that, given Locke’s formalistic and logically self-centered assumptions, could possibly warrant my duty to recognize the embryo’s right in principle, always and everywhere, to exist?

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